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RELIEF OF THE HEIRS OF THE EASTERN 
CHEROKEE INDIANS 



HEARINGS 

BEFORE A 

SUBCOMMITTEE OF THE 
COMMITTEE ON INDIAN AFFAIRS 

HOUSE OF REPRESENTATIVES 

SIXTY-FOURTH CONGRESS 
First Session 



ON 



H. R. 3680 




WASHINGTON 

GOVERNMENT PRINTING OFFICE 

19ia 



£r99 



D. of D. 
MAY 13 1916 



RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 



Subcommittee of the 
Committee on Indian Affairs, 

House of Representatives. 
Present: Representatives Church (presiding), Tillman, and Demp- 
sey. 

Mr. Church. Now, you gentlemen wish to be heard on H. R. 3680, 
I believe. I would say that unless you prefer to appear, a brief 
probably would be just as helpful to the committee. Of course, if 
you prefer to make a short statement in regard to it, we will be glad 
to listen to you. But I believe a brief would answer all the purposes 
probably better than a verbal statement. 

STATEMENT OF ME. WILSON L. TOWNSEND, OF WASHING- 
TON, D. C, REPRESENTING EASTERN CHEROKEE INDIANS. 

Mr. Smith. I think in that case we would like to take advantage of 
both opportunities, make a short statement of not over half an hour, 
and then submit briefs in addition. 

Mr. Church. Very well; that is satisfactory. 

Mr. TowNSEND. This bill seeks to remedy an error in the distribu- 
tion of a fund that was due the heirs of the Eastern Cherokee Indians, 
It was appropriated by Congress for them and the Supreme Court 
ordered it paid to them, but by an error in the mandate of the Supreme 
Court, through an order of the Court of Claims changing that man- 
date, the fund was distributed to other Eastern Cherokee Indians 
largely, and these people only got a small share of what they were 
entitled to. The facts leading up to that are as follows 

Mr. Church. Now, excuse me there — the Indians that the fund 
was authorized to be distributed to only received a part of it, and 
some other Indians that had nothing to do with it, were not the 
distributees of the fund, received part of it ? 

Mr. TowNSEND. The mandate was changed. The order was that 
the heirs of these Eastern or Emigrant Cherokees should be paid this 
fund, and the Court of Claims changed the mandate somewhat, and 
the fmid was paid to the Eastern Cherokees per capita — the descend- 
ants of these people — and of course these heirs got some of it, as 
commg m under the general class, but mstead of being paid to them 
directly and exclusively, it was distributed among tliem and these 
others. 

Mr. Church. In order to get this straight, who were the Eastern 
Cherokees ? 

Mr. TowNSEND. They were Cherokees living east of the Mississippi 
up to 1835, in Georgia, jUabama, North and South Carolina, and 
Tennessee, 16,000 of them. A good many of the Cherokees had 
already gone west of the Mississippi River of their own accord, but 



4 RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 

in 1835 the Government made this treaty that has been mentioned 
before, whereby these Indians were to give up their hinds east of the 
Mississippi and move west. The Government agreed to pay them 
a certain amount of money, $5,000,000 I beUeve it was. Then they 
moved in accordance with this treaty, but the money was not paid. 
Then came the treaty of 1846, when all the rights of these Eastern 
Cherokees were supposed to be settled up. In that treaty the Govern- 
ment provicUnl for the payment of this sum which had not been paid 
in accordance with the treaty of 1835. If I may read article 9 of 
that treaty — it covers our claim very largely. Ai'ticle 9 provided: 

The United States agree to make a fair and just settlement of all moneys due to the 
Cherokees, and subject to the per capita division under the treaty of 29th December, 
1835, which said settlement shall exhil)it all money properly expended under said 
treaty and shall embrace all sums paid for improvements, ferries, spoliations, re- 
moval, and subsistence, and commutation therefor, debts and claims upon the Chero- 
kee Nation of Indians, for the additional quantity of land ceded to said nation; and 
the several sums pro\-ided in the several articles of the treaty to be invested as the 
general funds of the nation, and, also, all sums which may be hereafter properly 
allowed and paid under the provisions of the treaty of 1835. The aggregate of which 
several sums shall be deducted from the sum of §6,647,067, and the balance thus 
found to be due shall be paid over per capita, in equal amounts, to all those individuals, 
heads of families, or their legal representatives, entitled to receive the same under 
the treaty of 1835, and the supplement of 1836, being all those Cherokees residing 
east at the date of said treaty and the supplement thereto. 

This treaty affirmed the prior treaty and assured to the Cherokees 
who moved west their money due them under the treaty of 1835. 
The money was distributed in 1852 on rolls that had been made up 
in 1851 : but in paying this money the Government kept back a part 
of it as the cost of removal of these Eastern Cherokees to their new 
lands west of the Mississippi. Ever since 1852 these Cherokees have 
been petitioning Congress, and complaining that this was an unjust 
charge, and that the cost of removal was to have been paid b}' the 
United States. 

Mr. Church. How much was the cost of removal? 

Mr. TowNSEND. It was later found by the accountants to be about 
$1,111,284. 

Mr. Church. That is the amount you are asking for? 

Mr. TowNSENi). That is tlie founchttion of the case. It was acted 
ujxin, passed tlirough the courts, and ordered paid with interest. It 
was distributed, but was distril)Uted to the wrong parties; that is our 
claim in hirge part; and these ])eople here are claiming their right 
sliare of that sum, which was paid to others instead of being paid to 
tliem. 

Mr. Church. How many were paid '. 

Mr. TowNsEM). ll was to all th(> (^astern CluM'okees })y blood per 
capita; the main fact comes out in the order of tlu^ court. Our con- 
tention concerns tiu> nu'thod of distribution, not the main claim, which 
has been allowed all the way tlirough. But the facts that we will 
bring »»ut show that our claim arose out of the method of distribution. 
The cliiiin has its foundation in the decisions of the C(»urt of Claims; 
s(i that if I can sid)niit those later on I think that i)oint will be made 
clear. 

In 1893, by the act of March 3, Congress referred this matter to the 
Secretary of the Interior with instructions to emjiloy accountants and 
strike an account between the Unitiul States and the Cherokees. 
Slade and iienih'r were appointed ])y the Secretary and made an 



RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 5 

accounting in which they stated that this sum was due the Cherokee 
Indians and was a charge against the United States and not against 
this fund— the sum of $1,111,000. This was referred in 1902 to the 
Court of Chiims. The Court of CLiims passed on it and also found the 
sum to be due the Cherokees. 

With regard to the distribution of this item the Court of Claims 
stated m its opinion, after providing for the payment of expenses of 
ascertaining title to this money, and attorneys' fees, etc., as follows: 

The remainder to be distributed directly to the eastern and western Cherokees, who 
were parties either to the treaty of New Echota, as proclaimed May 23, 1836, or the 
treaty of WasMngton of August 6, 1846, as indi\iduals, whether east or west of the 
Mississippi River, or to the legal representatives of such indi\"iduals. 

That is the vital part of this decree. This was appealed to the 
Supreme Court and afFn-med, and the Supreme Court made a modifi- 
cation of the mandate so that the old settlers already west of the Mis- 
sissippi would be excluded from participation. x\5 amended the 
Supreme Court sent it back, and the Court of Claims modified its 
decree in accordance with the decree of the Supreme Court. The 
Court of Claims then referred the matter to the Secretary of the 
Interior and told liim to appoint a commissioner to make up the roll 
of those entitled to share in the distribution, and to make the dis- 
tribution on the basis of the roll of 1851, which is the one upon which 
the main part of this fund was paid when it was due, in accordance 
with Article IX of the treaty of 1846, which I read before. 

Mr. Guion Ivliller was appointed the agent of the department for this 
purpose. His procedure was as follows — this is his report to the 
Court of Claims, February 4, .1910: 

ImmecUately upon my appointment as special agent of the Office of IncUan Affairs 
I prepared a notice in the name of the commissioner which bore date of August 20, 
1906, to all eastern Cherokees to file their applications for participation in the fund 
with the Commissioner of Indian Affairs by January 31, 1907. Tliis advertisement 
set forth that the rolls of 1851, upon which the per capita payment to the eastern 
Cherokees was made would be accepted as a basis and the fund would be distributed 
to the individuals named in said rolls of 1851 or to their legal representatives. 

Mr. Miller, afterwards, in 1907, reported that the distribution which 
he had contemplated — a per stirpes distribution — under the order of 
the court was impracticable. The Secretary of the Interior sent that 
report to the Court of Claims, and the Court of Claims had a hearing 
on the proposition and then vacated its previous order and entered the 
following order: 

It further appearing to the court that the lands disposed of by the eastern Chero- 
kees under the treaties of 1835-36 and 1846 were owned by them as a community 
and the rights arising under said treaties, as estabUshed by the decree of May 29, 
1906, accrued to the said eastern Cherokees as communal owners of said land; and 
it farther appearing from the report of Special Agent Guion Miller, accompanjing 
the reference of the Secretary of the Interior of February 20, 1'907, above referred 
to, that a per stirpes distribution to the eastern Cherokees who were parties to the 
treaties of 1835-36 and 1846 is impracticable; it is therefore further ordered that the 
commissioner hereinafter named shall enroll, as entitled to share in the fund aris- 
ing from said decree of May 28, 1906, all such individual eastern Cherokee Indians, 
by blood, living on May 28, 1906, as shall establish the fact thai they were memliers 
of the eastern Cherokee" Tribe of Indians at the date of the treaty of 1835-36 and 184(5 
or are descendants of such persons. 

The committee will see the change there in the order. The prior 
order of the Court of Claims, which I have read, was that the remain- 
der should be distributed to the parties — individuals, whether east 
or west of the Mississippi River, or to their legal representatives. 



b RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 

;Mr. Miller was then reappointed agent of the Court of Claims, in 
compliance with the second order of the court, and made up a roll 
of the Cherokee Indians by hlood living in the Cherokee country, 
eastern and emigrant Cherokees and parties to those treaties of 
1835 and 1886, or the descendants of them. This roll of his was 
returned to the Court of Claims on February 4, 1910. On March 7, 
1910, the court approved this roll, and distribution was commenced. 

On October 17, 1910, a petition was filed on behalf of the eastern 
Cherokee Indians in the Supreme Court of the United States for a 
writ of mandamus to compel the Court of Claims to distribute this 
fund in accordance with the original order of the Supreme Court of 
the United States. 

The Supreme Court heard arguments on this petition and dis- 
missed it on the sole ground of laches. They did not take up the 
merits of the case at all, but said the petitioners had slept on their 
rights, and dismissed the petition. A bill was subsequently intro- 
duced in Congress for their relief about two years ago. It was not 
acted upon, and this bill was subsequently reintroduced. 

Mr. Smith is going to take up the legal phases of the argument. I 
was going to state the facts, and I hope I have made them clear. 

I wish to file the following brief: 

Brief Submitted as Part of Record in Eastern Cherokee Indian Case. 

statement of facts. 

This bill seeks to correct an error in the distribution of a fund due the heirs of the 
eastern or cmvirant Cherokees, appropriated by Congress, and directed by the Supreme 
Court of the United States to be paid to them, which was in large part diverted from 
them and paid to the descendants of eastern Cherokees per capita through an order of the 
Court of Claims changing the original mandate of the Supreme Court. 

The facts are these: 

Prior to 1835 there were some 16,000 Cherokees li^■lng east of the Mississippi whose 
lands were desired for settlement. In 1835 a treaty was entered into between these 
Cherokees, called ea.-^tern « herokees to tlistinguish them from others who had already 
moved west, and the United States (vol. 7, Stat. L., 488), whereby, in consi<leration 
of the removal of these (herokees to lands pro^•ided for them west of the Mi.'ssissippi, 
the United States agreed to pay them §5,000,000. Part of this sum was to be charged 
off in \ arious ways and the balance distributed equally among all of the people of 
the Cherokee Nation east. 

The Cherokees duly removed west, but the payment agreed upon was not made, 
and in ]84() a new treaty was made (9 Stat. L., 871) to settle up the matter, which 
provided as follow.'', in Arti( le IX: 

"AnT. IX. The United Slates agree to make a fair and just settlement of all moneys 
due to the Cherokees, and siil)ject to the per cajnta division under the treaty of 29th 
Deceiiilu'r, 1S35. which said settlement shall exhibit all money properly expended 
under .siid treaty and shall embrace all sums paid for improvements, ferries, spolia- 
tions, removal, and sul)sistence, and connnutation therefor, debts and claims upon 
the ( herokee .Nation of Indians, for the additional quantity of land ceded to said 
nation; and the several sums jjrovided in the several articles of the treaty to be 
investi'd as the general funds of the nation, and also all sums whi( h may be hereafter 
])riipi'rly allowetl and ]);iid under the provisions of the trt-aty of 1835. The aggregate 
of .\\lii(h sai<l several sums shall lie deducted from the sum of !?().()47,0()7, and the 
bahince thus found to l)e due shall he paid orcr per cipita. in e(fU'il ain)Hnts, to all 
Ihnsi liidiiidiiiils, heads o/fantllics, or their lei/al represeiittilires entitled to receive the 
eumc under the treatv of 1S35 and the supnlemcnt of 1S3(), being all those Cherokees 
residing v.iM at the (fate of said treaty anu the supplement thereto." [Italic ours.] 

Disiribntion under this treaty wa.>< made in 1852, on rolls prepared the previous year 
wiih the exception of a sum (inured off lus removal expenses, being the cost of the 
emigratjiin from the lands eiusl of ilie Mississippi to Oklahoma. Thai sum is the one 
now under consideration. 



RELIEF OF HEIES OF THE EASTEEK CHEROKEE INDIANS. 7 

Ever since 1852 these Eastern Cherokees have claimed that the charge for removal 
was an improper one, as the United States was pledged to bear this expense. Congress 
was petitioned constantly, and finally, under the act of March 3, 1893, the controversy 
was referred to the Secretary of the Interior with instructions to employ accountants 
to make an account of moneys due the Cherokees. Messrs. Slade and Bender were 
thereupon appointed by the Secretary, and after nearly two years of work they sub- 
mitted their report, which was transmitted to Congress January 7, 1895. (H. Ex. Doc. 
No. 182, 53d Cong., 3d sess.) This report found that there was due the Eastern 
Cherokees, among other items, the sum of $1,111,284.70, being the expense of removal 
improperly charged to the treaty fund. Nothing further was done in this matter 
until the act of July 1, 1902, by which the Court of Claims was given jurisdiction to 
hear and determine the claims of the parties claiming this fund. 

After extended arguments and hearings, on May 18, 1905, the Court of Claims 
decided in favor of the claimants to this fund, and stated in its decree, with regard to 
the item of $1,111,284.70 for removal expenses, as follows: 

******* 

"Second. The remainder to be distributed directly to the Eastern and Western 
Cherokees who were parties either to the treaty of New Echota, as proclaimed May 
23, 1836, or the treaty of Washington of August 6, 1846, as individuals, whether east 
or west of the Mississippi River, or to the legal representatives of such individuals." 
******* 

(See opinion Court of Claims in 40 Ct. Cls., 252.) 

On appeal to the Supreme Court of the United States this decree was affirmed 
Ai^ril 30, 1906 (202 U. S., 101), with a modification which would more clearly exclude 
the Old Settlers, or Cherokees already residing west of the Mississippi at the time of 
the emigration of those east, from participation in this fund. In directing this modi- 
fication the Supreme Court said: 

"We concur with the Court of Claims in the wisdom of rendering judgment in favor 
of the Cherokee Nation, si.bject to the limitation that the amount thereof should be 
paid to the Secretary of the Interior, to be distributed directly to the parties entitled 
to it, but we think that the terms of the second subdivision of the fourth paragraph 
of the decree, in directing that the distribution be made to the 'Eastern and Western 
Cherokees,' are perhaps liable to misconstruction, although limited to those 'who 
were parties either to the treaty of New Echota, as proclaimed May 23, 1836, or the 
treaty of Washington of August 6, 1846, as individuals, whether east or west of the 
Mississippi River.' This should be modified so as to direct the distribution to be 
made to the Eastern Cherokees as individuals, whether east or west of the Mississippi, 
parties to the treaties of 1835-36 and 1846, and exclusive of the Old Settlers." 

The Court of Claims inmiediately thereafter modified its decree in accordance with 
this decision, and on May 28, 1906, entered an order directing the Secretary of the 
Interior to prepare a roll of persons coming within the description entitled to share in 
this fund, taking as a basis the rolls of 1851 (upon which the original distribution to 
the Eastern Cherokees of the main part of the money due them was made), and direct- 
ing him to make such distribution in pursuance of Article IX of the treaty of 1846, 
before referred to. 

The Secretary of the Interior appointed Guion Miller as special agent or commis- 
sioner to prepare the rolls, and his method of procedure is set out in his report to the 
Court of Claims of February 4, 1910, and is as follows: 

"Immediately upon my appointment as special agent of the Office of Indian Affairs 
I prepared a notice in the name of the commissioner, which bore date of August 20, 
1906, to all Eastern Cherokees to file their applications for participation in the fund 
with the Commissioner of Indian Affairs by January 31, 1907. This advertisement 
set forth that the rolls of 1851, upon which the per capita payment to the Eastern 
Cherokees was made, would be accepted as a basis and the fund would be distributed 
to the individuals named in said rolls of 1851 or to their legal repn\'^.'ntatives." 

Early in 1907 Guion Miller reported to the Interior Department that a per stirpes 
distribution, which he had contemplated, was impracticable. This report was trans- 
mitted by the Secretary to the Court of Claims on February 20, 1907. 

Thereafter, on the 28th of April, 1907, the Court of Claims, after holding a hearing 
on the question, vacated its j^revious order in the following terms: 

******* 

"It further appearing to the court that the lands disposed of by the Eastern Cher- 
okees under the treaties of 1835-36 and 1846 were owned by them as a connnunity, 
and the rights arising under said treaties, as established by the decree of May 28, 1906, 
accrued to the said Eastern Cherokees as communal owners of said lands; and it fur- 
ther appearing from the report of Special Agent Guion Miller, accompanying the 



8 RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 

reference of the Secretary of the Interior of February 20, 1907, al)ove referred to, that 
a per stirpes distribution to the Eastern Cherokees who were parties to the treaties of 
1835-36 and 1846 is impracticable; it is therefore further ordered that the commis- 
sioner hereinafter named shall enroll, as entitled to share in the fund arising from said 
decree of May 28, 1906, all such individual Eastern Cherokee Indians, by blood, 
living on May 28, 1906, as shall establish the fact that they were members of the East- 
ern Cherokee Tribe of Indians at the date of the treaty of 1835-36 and 1846 or are 
descendants of such persons, * * *." 

Guion Miller was then reappointed agent of the Court of Claims, and he proceeded 
to the Cherokee country and there made up a roll of all Cherokees coming under the 
order of the court. 

On February 4, 1910, Miller reported to the Court of Claims that the roll was com- 
plete, and on March 7, 1910. the court approved this roll and the fund was distributed 
per capita to those whose names appeared thereon. 

On October 17, 1910, a petition for a writ of mandamus was filed in the Supreme 
Court on behalf of the Cherokees, who claimed that the original decree called for a 
per stirpes distribution of this fund, asking that the Court of Claims be commanded 
to obey the mandate of the Supreme Court. Briefs were filed, and after hearing argu- 
ments the Supreme Court dismissed the petition on the sole gi'ouud of laches. The 
Eastern Cherokees now appeal to Congress for relief. 

A bill was introduced in the last Congress, but no action taken thereon. 

Mr. Church. We will now hear Mr. Smith. 

STATEMENT OF MR. FRANK S. SMITH, OF WASHINGTON, 
D. C, REPRESENTING EASTERN CHEROKEE INDIANS. 

Mr. Smith. First of all, gentlemen, we want you to understand 
exactly what it is we are asking. If you do not understand it fully, 
I wish you would cross-examine me until you do. 

What we are asking is a per stirpes distribution. We are not 
asking a per capita distribution as of this time, but a per stirpes dis- 
tribution, which is a per capita distribution as of 1835; that is, that 
it be given to the heirs of each one of those individuals who was 
entitled to share in the distribution at that time. Therefore we caU 
that, and in our brief it is referred to as a per stirpes distribution. 

The first proposition that we want to make is that there can be no 
question — and I believe no Member of Congress will question the 
fact — that there was a real indebtedness from tiie United States to 
the Eastern Cherokees in the year 1906. That indebtedness, of 
course, is proven by (1) the Slade and Bender accounting, which 
showed the indebtedness to be exactly as we claim; (2) the decrees 
of the courts — first, the decree of the Court of Claims, then the 
Su])reme Court decree, the mandate of the Supreme Court on appeal 
from the (\)urt of Chiims, anil then the final decree of the Court of 
Claims under the maiuhite of the Supreme Court — and the final dis- 
tribution. These all .show that there was a sum in existence — a debt 
in existence. The only j)ayment for that debt was this per capita 
distribution, a distril)ution eiiually among all the descendants of 
tliesc Eastern Cherokees; whereas it should have been to these indi- 
vi(hnd m(>mbers of the Eastern Cherokees entitled to share in the 
(hstril)Utioii luulcr the treaties of lSo5, 1S36, and 1846. as parties 
tiiereto, the heirs of each (h'ceased party entitled to take his share as 
they would take other property belonging to him. 

Now, no further attempt will l>e made to show the existence and 
amount of the claim, and the only (|uestion is. should this ])aymeut 
have l)e(Mi made i)er stirpes or per canita ( In other wonls, was the 
payment matle a real satisfaction of the obhgatiou ( 



RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. \) 

In that regard it is necessary to first consider a couple of prelim- 
inary points that come up in the interpretation of these different 
treaties and decisions. 

Some of these may seem seK-evident to 3"ou, and the only reason 
we advance them is the fact that in prior hriefs these same points 
have heen advanced hy the o])ponents to our theory. The first 
point is the use of the words "per capita" in the original treaty. 
That clearly does not mean per capita as of to-day. Of course, dis- 
tribution was to be per capita as of that date; that is the fact upon 
which we base our claim. The words ''per capita" in that treaty 
were used to distinguish this fund from the communal property. 
"Per capita" as of to-day means an entirel}^ different thing from 
''per capita" of that date, clearly, and what we claim as a per stirpes 
distribution is a per capita distribution as of that date — not as of 
to-day, but as of that date. A per capita distribution as of that 
date is directed in the original treaties of 1835 and 1836 and in the 
treaty of 1846. We make these points now because this probably 
will be brought to the attention of the members of the committee 
b}^ those opposing this bill, and we wish to discount them at the 
start, if possible. The words in the treaty of 1835 upon which the 
whole claim is based, "to be divided equally," mean divided equally 
at that time, not to-day. That again is the basis of our claim and 
can not be twisted to direct an equal division to all descendants in 
lUlO or to-day. 

In the opinion of the Supreme Court in the Old Settlers case the 
fund is referred to as the "per capita" fund, to distinguish it from 
funds or lands in which there was a community interest. That what 
we call a per stripes distribution was directed by the court in that 
case is shown by the fact that the actual distribution in that case 
was per stirpes; that is exactly what we are asking here, a distribu- 
tion per capita as of the original date. 

The words "legal representatives" appear in the treaty of 1846, 
and it seems to us that no words could have a clearer meaning. I 
do not mean a clearer meaning as to whether they mean heirs or 
administrators or next of kin. That is a disputed question, but that 
they mean one of those two I think is obvious. We do not care 
w^hich one you take, but those words should be interpreted to mean 
either heirs or next of kin. So far as we can find there has never been 
any holding that these words "legal representatives" mean other 
than heirs or next of kin. Further, the context shows conclusively 
that that is the meaning, because otherwise only the survivors of 
the original treaties would take. In the treaty of 1846 it says: 
"To the Eastern Cherokees, parties to the treaty of 1835, and their 
legal representatives." If "legal representatives" does not mean 
heirs or administrators, then only the survivors take, as there is 
no provision to cover descendants other than the words "legal 
representatives." Now that clearly was not the meaning, and I 
do not suppose anybody ever advanced that as the meaning of the 
treaty. 

Another disputed question is the question of whether or not the 
mandate of the Supreme Court of the United States of April 29, 1906 — 
that is, the mandate when the case was before tlie Supreme Court the 
first time on the appeal from the original decision of the Court of 
Claims, not the mandamus case — did or did not afTirm a per stirpes 



10 RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 

distribution. Tiiat question comes up in this way: The original 
decree of the Court of Claims admittedly directed a per stirpes dis- 
tribution, using the language quoted in the opinion below immedi- 
ately followed by the words "or to the legal representatives of such 
individuals." This decree of the Court of Claims was amended, and 
the question is whether or not the words '' or the legal representatives 
of sucli individuals" were amended or left untouched. 

The purpose of the amendment is shown clearly in the language of 
the opinion of the Supreme Court: 

"We concur with the Court of Claims in the wisdom of rendering 
judgment in favor of the Cherokee Nation, subject to the limitation 
that the amount thereof should be paid to the Secretary of the Inte- 
rior, to be distributed directly to the parties entitled to it, but we 
think that the terms of the second subdivision of the fourth paragraph 
of the decree, in directing that the distribution be made to ' the East- 
ern and Western Cherokees,' are perhaps liable to misconstruction, 
although limited to those 'who were parties either to the treaty of 
New Echota, as proclaimed May 23, 1836, or the treaty of Wash- 
ington of August 6, 1846, as individuals, whether east or west of the 
Mississippi River.' This should be modified so as to direct the dis- 
tribution to be made to the Eastern Cherokees as individuals, whether 
east or west of the Mississippi, parties to the treaties of 1835-36 and 
1846 and exclusive of the Old Settlers." 

We claim that that modification simply applies to the words 
quoted in this opinion. They do not modify any other words, and 
therefore they do not touch the words "legal representatives," 
which come very close to the words quoted there — in fact, in the 
same sentence, but yet are not quoted here as to be amended. 
Further, the opinion makes not the slightest mention of any change 
from per stirpes to per capita distribution. Therefore the words 
"or to the legal representatives of such individuals" were to be in 
the amended mandate just as truly as they were in the original 
mandate. They amended the mandate of the Court of Claims, but 
th(^ language they used in the opinion shows clearly what they 
amended. They amended cerlnin quoted words. They quote these 
words and say: "This should be modified." That means clearly 
the words quoted. The per stirpes distribution was afiii'med. 

Now, if these three preliminary points are accepted, then we find 
our case is as follows: 

The original treaty called for a per stirpes distribution. It was 
to ])(! divided e(|uj)lly among the (^herokee Indians east of tlu^ Misssis- 
sippi. That calls for a per stirpes distribution of personal property 
to each individual. 

Second, the treaty of 1846 C!),ll(>d for exactly the same thinp, to 
these j)arties or their h'gal representatives; to the EastiM'n Cherokees, 
parties to the treaty of 1835, or their legal representatives. 

Later on, the actual distribution to the Old Settlers, under an 
exactly parallel claim, under the same treatv, 1846, was made per 
stirpes. The first decision of the Court of Claims called for a per 
stirpes distribution clearly. Tiie mandate of the Supreme Court of 
the Tnited Stiites, on app(>al from the Court of Claims, as I have just 
set forth, called for a per stirpes (h-itribulion, u-^ing the words "per 
ca|)ita" in the sense 1 have used them all a'ong, nor capita as of 1835. 

The first mandate of the Court of Clai us aufl t'ae mandate of the 
Supre.iir Court calUMJ for a per stirpes distribution, and then only 



BELIEF OP HEIES OF THE EASTERN CHEEOKEE INDIANS. 11 

did this other question come in ; then only was any attempt made to 
make a per capita distribution, and on the report of Guion Miller the 
Court of Claims on its own initiative entered an order directing a per 
capita payment. It had gone through all those stages. This case 
has been through the courts ; it has had a varied career in the courts 
and Congress, and at no stage have the merits of this case been passed 
on contra to these claimants. They lost out in the Court of Claims 
on one ground only, impracticability. The court does attempt in a 
most weak-kneed way to bolster up its per capita distribution by 
another theor}^ It does not put it on that ground; it does not go 
that far, but simply states another point. I think perhaps nothing 
could show more clearly the rights, the merits of these claimants, the 
merits of their claim, than the attempt which the Court of Claims 
makes to justify per capita distribution. They look around for the 
best arguments they can find, and this is all that they find. 

Mr. Church. Would it be difficult to locate the legal representa- 
tives of these people ? 

Mr. Smith. Of course, that is the onl}^ argument, absolutely, against 
our claim. There can be none other advanced, and if there is any 
other argument in the minds of you gentlemen it is because we have 
not presented the case clearly. 

Mr. Church. Can those representatives be located? 

Mr. Smith. Yes, sir. 

Mr. Church. Perhaps that is the reason they took this view of it. 

Mr. Smith. Yes, sir; that is the only reason. They really admit — 
and we want to get this point clearly in the minds of the committee — 
that other than impracticability there can be no objection. It has 
been passed on again and again that on the merits it should go to 
these parties as heirs, not per capita to the descendants of the Eastern 
Cherokee Indians; and the impracticability of doing that was the 
only real argument ever advanced against it. As I say, the Court of 
Claims did put in another small argument on the side, but all through 
before that they had gone on the other theory, a per stirpes distribu- 
tion, without advancing any such argument. 

On the c{uestion of practicabilit}^ perhaps nothing could be stronger, 
certainly nothing could be stronger, than the fact that a per stirpes 
distribution exactly as we ask was successfully executed in the case 
of the Old Settlers. That was done in 1896. Arguments might be 
advanced by us 'on the question of practicability and impracticability 
indefinitely, but they could not have the effect of that one statement, 
it has been done in a case which was in every practical way identical 
with this. It is more work, there is no c{uestion about that. It is a 
hard job, a much more difficult task than to divide it per capita. 
But, gentlemen, Mr. Miller himself when he decided their rights to 
share in the per capita payment had to pass on the question of 
whether or not each one of these individual claimants was a descend- 
ant of a party to this treaty — that is, really an Eastern Cherokee by 
blood. When he passed on that cjuestion — as he did pass on it — he 
could have ruled on the question of just how many of those Eastern 
Cherokees he was descended from. And if he had passetl on that 
question of just how many the claimant was descended from, com- 
plete data for the per stirpes distribution would have been before 
him. It would not have been a simple matter; it would have been 



12 RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 

somowhat complicated, of course, but it could have been done. Tlie 
data was almost all there before him, and it could have been worked 
out from those facts — that is, not quite from the facts he decided, but 
from the one further fact. He decided whether or not he was de- 
scended from any Eastern Cherokee, and in order to make a per 
stirpes distribution he would have had to go further and decide just 
exactly how many Eastern Gherokees he was descended from. 

But here is another point. Is not this answer absolutley applica- 
ble to this question ? Even admitting that it would be impracticable, 
had the Government any right to use this rule of convenience in this 
case; to say that merely because many of these claimants could not 
prove their claims, that those who could prove their claims should 
not recover according to their rights ? 

Now, it undoubtecUy will be the case, if this bill is passed by Con- 
gress, that a great many can not prove the amount they are entitled 
to. That is all well enough. They have already received payment 
under the per capita distribution of more than they were entitled to. 
because they were not and are not entitled to anything. But those 
who are prepared and ready to prove their claims should be given an 
opportunity. We have in our office over 1,000 applications wliich 
we ])elieve set forth facts sufficient as a basis for a per stirpes distri- 
bution in those cases. Now, if there are only 1,000 who can prove 
their claims, tha,t is basis enough for the interference of Congress in 
tills matter. 

Finally, gentlemen — I will not take your time an}^ further except 
to say this: If there was only one fact in this case upon whch to 
base our whole claim, and that fact was tliis original treaty providing 
that the money should be divided equally among these Eastern 
Cherokees, we could come before you and ask this same relief. But 
ther(> is nothing of that kind. Instead of that, court after court has 
passed on tlie proposition and decided on the whole case that we are 
entitled to a distribution per stirpes, and finahy the Court of Claims, 
contra to the mandate of the Supreme Court of the United States, 
made a (Hstributicm — not on a legal ground — per capita instead of per 
stirpes, not on a legal ground but simply on the ground of practica- 
bility, in face of the fact that not many years before there had been 
s.icli a distribution in practically a similar case. 

Mr. Church. How much did each one get under the per capita dis- 
tribution ? 

Mr. Smith. Tliere were 30,000 of them practically — a little over 
30.()()(), and the sum was .'?4, ()()(), ()()(). 

Mr. TiLT.MAN. Instead of (listril)uting this money, then, to the 
heirs of the Kastern Cherokees, they distributed it to all the Cherokees 
per capita instead of ])er stirpes? 

Mr. S.Mrrn. Not all the Cherokees, only the Eastern Cherokees. 

Mr. Tjm-max. 1 understand, but these people you are representing 
received some of this money, but your contention is it should have 
been distributed per stirpes; tliat is to say, the heirs of the Eastern 
Cherokees should have received it instead of the whole numl)er of 
Ch(M-ok(>es receiving it jier cai)ila, which of course would limit the 
amount paid -leave a smaller amount than they would liave received 
bv a j)er stirpes <listri])Ution. 1 wish you would develoj) tliat fact. 

Mr. Smith. 1 will not say anything more except on that question of 
e.xactl\- what oui- claim is. 



RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 13 

Mr. Dempsey. I would just like to ask one or two questions. As I 
understand it the situation is this: If these recitals in this bill are 
correct here is a c^uestion, I can not understand one thing, if you 
claim that the decision of the Court of Claims was wrong, why did 
you not appeal from it? 

Mr. Smith. Well, as my colleague mentioned that fact I did not 
put any stress on it at all. There was a mandamus proceeding 
brought to order the Court of Claims to enter their mandate, or make 
their distribution in accordance with the prior decision, the prior 
mandate of the Supreme Court of the United States, and that was 
dismissed on the one ground of laches. 

Mr. Dempsey. In other words, you did not do it within such time 
as the court held you should have done it if you wanted to proceed ? 

Mr. Smith. Well, even on that 

Mr. Dempsey (interposing). That was what the court acted on? 

Mr. Smith. Yes; that was the theory of the court. 

Mr. Dempsey. Instead of taking the ordinary appeal you pro- 
ceeded by mandamus, and proceeded, as the court said, too late ? 

Mr. Smith. Yes. 

Mr. Dempsey. How long ago was that decision rendered ? 

Mr. Smith. In 1012. This bill was introduced shortly after the 
decision, and it died a natural death at the end of the last Congress. 

Mr. Dempsey. Judge, can you see any escape from the fact that — - 
isn't this an appeal from the decision of the court? 

Mr. Tillman. It is somewhat in that category, I guess. 

Mr. Dempsey. It is legislating to override the decision of the 
court. 

Mr. Tillman. Going into another forum to establish their con- 
tention. 

^Ir. Smith. Now, if I might add this one word on the point you 
mentioned, there is one answer to the decision of the Supreme Court. 
There is one line of decisions that was not brought to their atten- 
tion, which they did not consider and did not mention. That is the 
lina which you gentlemen are all familiar with, the line that laches 
can not be imputed to a tribal Indian. Now, on that question, as 
you know, there have been plenty of decisions. We have cited 
decisions in our brief, and we argue that question. That is one of 
the points presented. 

Mr. Dempsey. Can we presume, as a committee of the House of 
Kepresentatives, that the Supreme Court has overlooked a controlling 
decision ? That would be the only ground upon which we could say 
that this was not an appeal from the decision of the Supreme Court, 
that the Supreme Court had overlooked a certain line of decisions. 

Mr. Smith. Yes, sir. 

Mr. Dempsey. That they made it through inadvertence. 

Mr. Smith. I think that is pretty evident when you read their 
decision. They certainly would have considered that line of decisions 
at least of importance enough to justify mentioning it in the opinion^ 
if it had been considered at aU. 

Mr. Tillman. When did you say distribution was made ? 

Mr. Smith. Actual distribution ? 

Mr. Tillman. Yes. 

Mr. Smith. It ended about 1910. 

Mr. Tillman. When did it begin ? 



14 EELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 

Mr. TowNSEND. It started some time after March 7, 1910. The 
Guion Miller roll was finally approved March 7, 1910. 

Mr. Smith. It was made dm'ing 1910, because the distribution had 
been made to aU but 300 when the mandamus proceedings were 
brought. 

On these grounds, gentlemen, we ask your relief. 

I wish to submit the following brief : 

ARGUMENT, 

First as a preliminary proposition the Eastern Cherokee Indians were entitled in 
1906 to the sum of §1,111,284.70 with interest from June 12, 1838. This is shown by 
the Slade-Bender account, by the Court of Claims decision, the Supreme Court decision 
on appeal, and the actual payment after the appropriation by ( 'ongress. Xo further 
attempt will be made herein to show the existence or amount of this indebtedness. 
Further, tliis indebtedness has not been satisfied by other means than the per capita 
distribution to the Eastern Cherokee Indians parties to the treaties of 1835-36 and 1846. 
This was not payment and full satisfaction unless the per capita distribution was cor- 
rect, which is the real question in issue here. 

This sum should have been paid to the individual Eastern Cherokee Indians, par- 
ties to these treaties, the heirs of each dead party taking his share. 

In considering this point there are three prelimii!ary questions of interpretation 
which must be tirst decided. These questions all bear upon the question of whether 
different treaties, opinions, etc., direct a per stirpes or per capita distribution. 

1. The use of the words "per capita" in the treaty of 1846 and the use of the words 
"to be di\dded equally" in the treaty of 1835 in no way direct or justify a per capita 
distribution of 1910 or of to-day between the descendants of the original parties. The 
distribution was to be and should be per capita as of the date 1835. The reason for the 
use of these phrases is e\ident. The sum was to be paid in consideration of communal 
property of the Cherokees. The words ' ' per capita " are used in contradistinction to the 
idea of communal ownership. They are necessary as the fund was not to be a tribal 
furd but individual property. The direction of a per capita distribution as of 1835 
is the basis for our claim for what we are calling a per stirpes distribution to-day. Also, 
in the opinion of the Supreme Court of the United States in the "Old Settlers case" 
(148 U. S., 147) the fund is spoken of as the "per capita" fund to emphasize the fact 
that there was no communal ownership in regard to it. The opinion nowhere directs 
a per capita y)ayment to the parties to the treaties and their descendants, but directs 
distribution according to the treaty of 184(). The actual distribution was per stirpes. 

2. \\q submit that the words "legal representatives" used in the treaty of 1846 do 
not mean merely persons in loco parentis, but heirs or admiidstrators. This is the 
general meaning of the words as is shown in Thompson v. United States (20 Ct. Gls., 
276), where the court said: 

"The term 'legal representative' is not of uniform interpretation. It may mean 
those who succeed to the inheritance of the estate, or it may mean those upon whom 
the law devolves the legal capacity of an administrator. The ordinary meaning of 
the words 'representatives,' 'legal representatives,' 'personal representatives,' is that 
they refer to the person constituted representative by the proper court, and the onus 
is ujjon those attempting to maintain a different construction to show a different 
meaning. 

" In the absence of anything appearing in the context, those words found in a statute 
or written instrument must be held as meaning the admmistrator or executor." [Italics 
ours.] 

Further the context shows conclusively that such is the meaning here, because 
otherwise in the case of all those entitled under the treaty of 1835 who had died be- 
tween 1835 and 1846, leaving descendants, the wording of the treaty of 1846 would 
cnlirely eliminate such descendants from distribution, and only the survivors could 
recover, as the treaty directs jiaymcnt "to all tho.se individuals, heads of families, or 
their legal renresenlatives entitled to receive the same under the treaty of 1835," etc. 
It has never been claimed and can not now be claimed that the intention was to pay 
8ur\dvors only. Therefore, legal rejire-sentalix-es must be interpreted to mean heirs 
or adininislrator. Kurlher, it is well settled that in transaction with Indians their 
int('r|)re(ation of what is nu'ant by the language must, if possible, be followed. (Choc- 
taw .Nation v. U. S.. 11!) U. S.l 1; Worcester v. Georgia, 6 Pet., 515-582; Jones v. 
jMeehan, 175 U. S., 1-29.) 

The laws of the Cherokee Nation pro\'ide. and did then provide, for the descent of 
property. Therefore all their {)roi)erty was not held under community of ownership. 



EELIEF OF HEIKS OF THE EASTERN CHEROKEE INDIANS. 15 

The natural interpretation of the words "legal representatives" would be heirs or 
adminis;rat:ir. 

3. The mandate of the Supreme Court of April 29, 1906, affirmed the per stirpes 
distribution pro\'ided for in the decision of the court in the Court of Claims, for the 
opinion accompanying said mandate states: 

"We concur with the Court of Claims in the wisdom of rendering judgment in favor 
of the Cherokee Nation, subject to the limitation that the amount thereof should be 
paid to the Secretary of the Interior, to be distributed directly to the parties entitled 
to it, but we think that the terms of the second subdi\'ision of the fourth paragraph of 
the decree, directing that the distribution be made to 'the Eastern and Western Chero- 
kees,' are perhaps liable to misconstruction, although limited to those 'who were 
parties either to the treaty of New Echota, as proclaimed May 23, 1836, or the treaty 
of Washington of August 6, 1846, as indi\icluals, whether east or west of the Mississippi 
River.' This should be modified so as to direct the distribution to be made to the 
Eastern Cherokees as individuals, whether east or west of the Mississippi, parties to 
the treaties of 1835-36 and 1846, and exclusive of the Old Settlers." 

The word which we have italicized, "this," clearly refers back to the quotation 
from the decree of the Court of Claims. Only the words quoted are to be modified. 
The quotation does not include the words "or to the legal representatives of such 
individuals." These words, though coming in the same sentence as and immediately 
following the words cjuoted, are carefully omitted from said words quoted. Therefore 
they stand unchanged. Further, the mandate itself shows that it was not to affect the 
words ''or to the legal representatives of such indi\iduals" in the mandate of the 
Court of Claims. For if it were interpreted to exclude these words, the mandate would 
direct distribution to the survivors of the parties to the treaties of 1835-36 and 1846. 
The ob\T.ous purpose of the amendment was to exclude the Old Settlers . 

We have advanced three propositions in regard to interpretation of certain treaties 
and decisions. 

1. That the words "per capita" as used in the treaty of 1846 and in the opinion of 
the Supreme Court in the Old Settlers case did not mean a present per capita distri- 
bution among all those entitled but a distribution per capita as of the year 1835, which 
is what we ask, designating such distribution by the name per stirpes. 

2. That the words "or the legal representatives" meant their heirs, executors, or 
administrators. 

3. That the mandate of the Supreme Court of the United States of April 30, 1906, 
affirmed the per stu'pes distribution. 

Presuming these propositions correct, on the question of whether distribution should 
be per capita or per stirpes, it can be stated that: (1) Treaty of 1835 contracted for a 
per stirpes distribution; (2) the treaty of 1846 contracted for a per stirpes distribution; 

(3) the Old Settlers indentical claim under the same treaty (1846) was paid per stirpes; 

(4) the Court of Claims original decree directed the per stirpes distribution; (5) the 
Supreme Court of the United States in its mandate of April 30, 1906, affirmed a per 
stirpes distribution; (6) the original decree of the Coui"t of Claims in accordance with 
said mandate directed a per stirpes distribution. This shows in the form of a sum- 
mary how the merits of claimants' case have been upheld by different tribunals. 

Later, Guion Miller, the special commissioner appointed by the Court of Claims, 
reported a per stirpes distribution impracticable, and the Court of Claims then ordered 
a per capita distribution, no one appearing in opposition thereto. Even when the 
Court of Claims decided to make a per capita distribution it advanced no real reason, 
except the impracticability of the per stirpes distribution. Perhaps no affirmative 
argument could show the injustice of a per capita distribution and the absence of legal 
grounds therefor more than the weakness of the reasons advanced by the Court of 
Claims to uphold their order of per capita distribution. Their discussion of the point 
in full is as follows: 

"It further appearing to the court that the lands disposed of by the Eastern Cherokees 
under the treaties of 1835-36 and 1846 were owned by them as a community, and the 
rights arising under said treaties, as established by the decree of May 28, 1906, accrued 
to the said Eastern Cherokees as communal owners of said land ; and it further appearing 
that from the report of Special Agent Guion Miller, accompanying the reference of tlie 
Secretary of the Interior of February 20, 1907, above referred to, that a per stirpes dis- 
tribution to the Eastern Cherokees who were parties to the treaties of 1835-36 and 1846 
is impracticable, it is therefore further," etc. 

The first ground that was advanced in this opinion for a per capita distribution, 
namely, that the property was held in the communal interest, is expressly answered 
by the language of the Old Settlers case (148 U. S., 427, 479): 

"The lands west of the Mississippi were held as communal property, not vested iu 
the Cherokee as individuals, as tenants in common or joint tenants; but by the treaties 



16 RELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 

of 1835 and 184C the communal character of the property was terminated as to both 
Eastern and Western Cherokees, and the fund taking the place of the realty, was 
invested in the various ways we have mentioned, lea\dng the remainder to be distrib- 
uted per capita." 

So the only ground worthy of mention advanced for the per capita distribution was 
the impracticability of the per stirpes distribution. In the mandamus proceedings 
May 28, 1910, the petition of your present claimants was denied on the single ground 
of laches. 

So we are presenting to Congress a claim which has had a varied career in the Con- 
gress and courts of this country, which has never been decided against your claimants 
on the merits In' any body, legislative or judicial, and yet which was not paid on the 
single ground that it was impracticable to make the per stirpes distribution. Still 
further a rehearing on the question was denied because of laches. Upon these facts 
we maintain that the distribution should have been to the individual Eastern 
Cherokees parties to the treaties of 1835-36, and 1846, the heirs of each deceased to 
take his share rather than to the descendants of said Eastern Cherokees parties to said 
treaties per capita. 

The per stirpes distrilnition was ruled out on the groimd of impracticability, but 
we submit that the per stirpes distribution is practicable. Under the per capita dis- 
tribution which was made it was necessary for the commissioner, Mr. Guion Miller, to 
pass upon the question whether or not each applicant for distribution had descended 
from an Eastern Cherokee party to the treaties of 1835 and 1846. If it was possible for 
him to pass accurately upon this question, it was possible for him to go fiu-ther to 
decide whether or not each claimant had descended from three or four of these Eastern 
Cherokees. This once done the facts upon which to pass a per stirpes distribution 
are ascertained. We do not claim that a per stirpes distril)ution would have been a 
simple matter. However, only by this method can the parties rightfully entitled be 
paid. A mere balance of convenience rule can not justify a distribution counter to 
the terms of the treaties. But most important of all a per stirpes distribution has been 
successfully carried out in the past as in the case of the Old Settlers in 1896. No 
argument to show the practicability or impracticability can compare A^dth this very 
fiini])le one — in a similar case it has been done. Further the burden is upon the 
Indians; they must prove their claims or lose their rights. Even though some, per- 
haj)s many, of the Indians entitled could not prove their claims, yet those who can 
prove their claims should be paid in accordance with the original obligation of the 
United States. \\'e the attorneys for the claimants have in our possession over 1,000 
applications which, we beUeve, contain sufficient evidence upon wMch to base a per 
stirpes distribution. 

Thmigh the merits of our case do not depend upon it, we nevertheless advance this 
final pro])<).-;iti()n. We merely suggest that the .Su]>r.>me Court of the United States, 
in its decision in the mandamus pmcei-dings, in which it denied the petition, obviously 
overlooked the line of decisicms which was nowhere l)ro;ight to their attention, and 
that as a resnlt the Su])reme Court was in error in holding the petitioners guilty of 
laches. The line of decisions referred to holds that a tribal Indian can not be guilty 
of laches. In Chereokee Natiim ?•. State of Georgia (30 U. S., 1, 17). Chief Justice 
said, in regard to the Indians: ''Meanwhile they are in a state of pupilage. Their 
■ relation ((* the United States resembl<>s that of a ward to his guardian." The American 
and l^iigli.sh Encyclopedia of Law of volume 18, page 108, under the title "Laches," 
has this ])aragraph: 

"(1. Tribal Indians. — Laches can not be imputed to one who is under disability aa 
a tril)al Indian." 

In Langhton r. Xadeaii ct al. (75 Fed. Rep.. 789), X had represented plaintiff as 
dead, and thereby r)l)tained patent. In a bill by plaintiff to clear title after a lapse of 
23 years and 7 years after he had become a citizen, the coint said: 

' No laches could be imjiuted to the com])lainant while under disability as a tribal 
Indian. He and his lands were under the control of the Government." 

In the case of Felix r. Pat rick (145 U. S.. 317-332), the Supreme Court said: 

''IJut, ronrnliiifi thai the /ihiinti/l's ircre iucnpable, so long as Ihcij retained their tribal 
relations, ofheinij n/hrtat n ilh larhts, and that these relations were not dissolved until 
1HS7, when they were lirsl ap])ri.sed of their right to this land, it does not necessarily 
follow that they are entitled to the relief demanded by this bill." [Italics oiirs.l 

So long as the trilial existence contiiuies, the admissi(Mi of Indians to citizenship 
does not terniiiiate the relation of guardian and ward tipon which the rule that laches 
can not be imi)uted to the tribal Indians is l)ased. (Slarchie Tiger r. Western Im- 
provement Co., 221 U. S.. 2H6; Hcckman v. U. S., 224 U. S.. 413, "at 436; Rainbow v. 
Young, 161 Fed. !{.•])., 835; U. S. v. Celestine, 215 U. S., 278; and'in re Coombs, 127 
Mass., 278.) These cases are quoted for two purposes: First, they suggest that the 



.^ T\ 



A H r'rsA 



EELIEF OF HEIRS OF THE EASTERN CHEROKEE INDIANS. 17 

Supreme Court may have erred. But even it the Si'preme Court did not err, even if 
the strict legal rules would bar claimants from relief in courts because of laches, are 
not these cases of persuasive value to suggest how much more broadly the principle 
should be applied by this body, untrammeled as it is by technical rules? 

We are asking Congress to pay a debt for the second time. That, to our minds, is 
the most substantial objection to this claim. But we submit that the facts of this case 
justify such a double payment by the United States. With the treaties of 1835-36 
and 1846 as they were, even if court after court had directed a per capita distribution, 
we would have good foundation for this claim, requesting that a miscarriage of justice 
be righted. But we have a far better case than that. It has been favorably passed 
upon on the merits by every tribunal before which it has come. It has been denied 
only because of impracticability in the face of the fact that a successful execution in 
a similar case affords the clearest proof of its jiracticabil'ty. .A. further hearing on 
the question was denied on the ground of laches without consideration of the authorities 
we have advanced to show that laches can not be imputed to a tribal Indian. 

These are the facts upon which we base our right to relief from the Congress of the 
United States. 

We are not asking Congress to pass a bill on the theory that the courts have decided 
the case incorrectly after hearing our arguments. We are asking Congress to legislate 
so as to affirm all the decisions except the final one of the Court of Claims. We are not 

■^ asking Congress to go behind the Supreme Court of the United States. We are merely 

ii( asking Congress not to bar claimants because of laches, notwithstanding the fact that 

a the Supreme Court did so bar them. 

^ Respectfully submitted. 

^ Mr. Church. Now, Mrs. Sanders, you want to speak for three 
minutes ? 

STATEMENT OF MRS. SUSAN SANDERS, OF ST. LOUIS, MO. 

Mrs. Sanders. Yes; one minute. He now has rendered your most 
,' sincere, earnest attention to me, and this gentleman speaks very 
fluently and it seems he understands what the lawyers have related 
to you. 

Now, I want to say to you, gentlemen, that after John B. Daish 
put his brief in as findings of fact to the Supreme Court — you know 
for the mandamus — we found later in the law that laches can not be 
imputed to tribal Indians; and by the 20 letters which were left here 
.5 for this committee you will find that I have set out most every specific 
point in the Freedmen case and the Emigrant case — giving you such 
as I have copied from the records of the court. 

Now, I wish to relate one little point. Laches can not be imputed 
against tribal Indians. 

Now, then, so long as I live, I leave it to you men, and I believe you 
are men of honor and hearts and of future ideas — now, then, can 
your heir take your father's and mother's estate while you live ? The 
law says no. Can my grandchildren come in and take what belonged 
to my father and my mother ? There is no law in the United States, 
in justice and in equity, can ever take the property while I live, 
without a \n\\. If it is left by a vnW, that is different," but if it is left 
open, my father's estate comes to me as long as I am the surviving 
heir. 

I thank 3'ou for your attention. 

Mr. Church. I believe that concludes the hearing. 

(Whereupon, at 4.20 o'clock p. m., the subcommittee adjourned.) 

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